Ardhanari Swami vs Ayyavoo and Kulandaivelu

A.C. Arumugaperumal Adityan, J.—Crl. R.C. No. 730 of 2005 has been preferred against the order passed in Crl.M.P. No. 5432 of 2003

in C.C. No. 55 of 2000 on the file of the Judicial Magistrate No. 1, Attur, Salem.

Crl.R.C. No. 731 of 2005 has been filed challenging the order passed in Crl.M.P. No. 5433 of 2003 in C.C. No. 140 of 2000 on the file of the

Judicial Magistrate No. 1, Attur, Salem

Both the petitions have been filed u/s 47 of the Indian Evidence Act with a prayer to send the impugned cheque bearing Cheque No. 76802

date 21.12.1999 being the subject matter of C.C. No. 55 of 2000 and cheque bearing 76803 dated 21.12.1999 being the subject matter of C.C.

No. 140 of 2000 on the file of Judicial Magistrate No. 1, Attur, Salem for the purpose of ascertaining the genuineness of the cheque by way of

comparing the signature in the cheque to that of the admitted signature of the accused/petitioner.

The learned trial Judge, after perusing the averments in the petitions as well as the contentions raised by the respondent in his counter in the

respective petitions, has ultimately come to a conclusion that the petitioner in both petitions is not entitled to any relief under the petitions and

accordingly dismissed the petitions which necessitated the petitioner in the above Crl. M.Ps to prefer these revisions.

Heard Ms. S. Rajini Ramadass, learned Counsel appearing for the revision petitioner and Mr. T. Murugamanickam, learned Counsel appearing

for the respondents and considered their respective submissions.

The learned Counsel appearing for the revision petitioner relying on a decision reported in Mrs. Kalyani Baskar Vs. Mrs. M.S. Sampornam,

and would contend that in a case of similar nature, the petitions have been filed by the accused for getting opinion of a hand writing expert to

ascertain the genuineness of signature on it, is liable to be allowed. The learned Counsel would rely on the observation in paragraph 12 of the

above said ratio decidenti which runs as follows:

Section 243(2) is clear that a Magistrate holding an inquiry under Cr.P.C. In respect of an offence triable by him does not exceed his powers u/s

243(2),if, in the interest of justice, he directs to send the document for enabling the same to be compared by a handwriting expert because even in

adopting this course, the purpose is to enable the Magistrate to compare the disputed signature or writing with the admitted writing or signature of

the accused and to reach his own conclusion with the assistance of the expert. The appellant is entitled to rebut the case of the respondent and if

the document viz., the cheque on which the respondent has relied upon for initiating criminal proceedings against the appellant would furnish good

material for rebutting that case, the Magistrate having declined to send the document for the examination and opinion of the handwriting expert has

deprived the appellant of an opportunity of rebutting it. The appellant cannot be convicted without an opportunity being given to her to present her

evidence and if it is denied to her, there is no fair trial. ""Fair trial"" includes fair and proper opportunities allowed by law to prove her innocence.

Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial.

There cannot be any two opinion in respect of the principle laid down in the above said dictum. But only difference is in the said ratio the accused

had filed petition u/s 243(2) of Cr.P.C. after the closure of the evidence on the side of the complainant. But in the present facts of the case, the

petitioner has filed a petition u/s 47 of the Indian Evidence Act and not u/s 243(2) of Cr.P.C.

Admittedly, the evidence of the complainant is still pending. The revision petitioner herein has not even cross examined P.W.1. After the

evidence on the side of the complainant is over, it is open to the revision petitioner herein to let in his evidence. At that time when an opportunity is

given to him by the trial Court.

The grievance of the revision petitioner is that the impugned cheques in the above said cases are forged one. If it is so, by way of rebuttal

evidence, the revision petitioner herein is entitled to agitate his grievance by way of defence before the trial Court at the appropriate time.

Under such circumstances, I do not find any reason to interfere with the findings of the learned trial Judge in Crl.M.P. No. 5432 of 2003 in C.C.

No. 55 of 2000 and Crl.M.P. No. 5433 of 2003 in C.C. No. 140 of 2000 respectively on the file of the Judicial Magistrate No. 1, Attur, Salem.

In the result, Crl.R.C. Nos. 730 and 731 of 2005 are dismissed confirming the order of the learned trial Judge in Crl.M.P. No. 5432 of 2003 in

C.C. No. 55 of 2000 and Crl.M.P. No. 5433 of 2003 in C.C. No. 140 of 2000 respectively on the file of the Judicial Magistrate No. 1, Attur,

Salem. The trial Judge is directed to expedite the trial of C.C. Nos 55 and 140 of 2000 and dispose of the same within a period of two months

from the date of receipt of a copy of this order. The trial Court need not be carried away by any observations made in this order. Consequently,

connected Crl. M.P. Nos 4698 and 4705 of 2005 are also dismissed.